United States District Court, D. New Jersey
Milbourne, Petitioner pro se.
B. SIMANDLE U.S. DISTRICT JUDGE.
Order dated July 28, 2017, this Court denied Lamar
Milbourne's amended petition for a writ of habeas corpus
pursuant to 28 U.S.C. § 2254 and denied a certificate of
appealability. [Docket Item 19]. Petitioner has now moved for
amendment of that order arguing the Court failed to address
one of the grounds raised in the petition [Motion, Docket
Item 20]. For the reasons stated herein, the motion shall be
was convicted of first-degree aggravated sexual assault, N.J.
Stat. Ann. § 2C:14-2(a); first-degree kidnapping, N.J.
Stat. Ann. § 2C:13-1(b); third-degree aggravated
assault, N.J. Stat. Ann. § 2C:12-16; third-degree
criminal restraint, N.J. Stat. Ann. § 2C:13-2(a);
possession of a baseball bat for an unlawful purpose, N.J.
Stat. Ann. § 2C:39-4(d); second-degree robbery N.J.
Stat. Ann. § 2C:15-1(a); second-degree conspiracy to
commit robbery, N.J. Stat. Ann. § 2C:15-1(a)(1); and
disorderly persons simple assault, N.J. Stat. Ann. §
2C:12-1(a) for attacks against two individuals in 2002. After
pursuing state court remedies, he filed a § 2254
petition on August 7, 2013 [Petition, Docket Item 1].
Order dated August 15, 2013, this Court informed Petitioner
of his rights under Mason v. Meyers, 208 F.3d 414
(3d Cir. 2000), and ordered him to advise the Court as to how
he wished to proceed. [Mason Order, Docket Item 2].
Petitioner elected to submit an amended petition on September
16, 2013. [Amended Petition, Docket Item 6]. The Court
addressed and denied all grounds in the Amended Petition on
July 28, 2017. [Opinion Order, Docket Items 18 & 19.].
Petitioner thereafter filed the present motion to alter or
amend the judgment arguing the Court failed to address one of
the points allegedly raised in his petition, namely, an
alleged ground that his statement to police should have been
suppressed due to illegal arrest without a warrant.
STANDARD OF REVIEW
district, a Rule 59(e) motion to alter or amend judgment is
reviewed under the same standard as a motion for
reconsideration under L. Civ. R. 7.1(i). A party seeking
reconsideration must set forth “concisely the matter or
controlling decisions which the party believes” the
Court “overlooked” in its prior decision. L. Civ.
R. 7.1(i). “As such, a party seeking reconsideration
must satisfy a high burden, and must rely on one of three
grounds: (1) an intervening change in controlling law; (2)
the availability of new evidence not available previously; or
(3) the need to correct a clear error of law or prevent
manifest injustice.” Max's Seafood Cafe ex rel.
Lou-Ann, Inc. v. Quinteros, 176 F.3d 669, 677 (3d Cir.
1999); N. River Ins. Co. v. CIGNA Reins. Co., 52
F.3d 1194, 1218 (3d Cir. 1995).
argues the Court overlooked a ground for relief, specifically
that his statement to police should have been suppressed due
to an illegal arrest as there was no arrest warrant nor
consent to enter his home. Petitioner's motion is denied
because the Court addressed all of the points he raised in
his Amended Petition. The alleged overlooked ground was not
included in the Petition or the Amended Petition.
evident from the electronic docket heading across the top of
Petitioner's current exhibit [Docket Item 20], the
document attached to Petitioner's motion consists of
excerpts of his original petition [Docket Item 1]. The
portion of the original petition now cited as proof that he
presented his illegal arrest claim to the Court, Exh. 6, is
merely the section of the original petition setting forth the
grounds that were raised in the state courts.
Compare Petition [Docket Item 1] at 3, with
Exh. 6 of current motion [Docket Item 20]. One of the
grounds listed in the original petition as raised in the
state courts is indeed listed as: “Statement should be
suppressed due to illegal arrest, no warrant to arrest or
valid consent to enter home, ” which appears in answer
to the question of “grounds raised” upon review
to a higher state court, here, the New Jersey Supreme Court
[Petition, Docket Item 1, ¶ 9(g)(6)]. This, obviously,
was part of the history of the state court litigation. The
actual grounds being raised in the original petition begin on
Petition, p. 5, ¶ 12 [Docket Item 1 at Page 5].
Petitioner listed four grounds that he was raising under
§ 2254, none of which mention suppression of
oral statements following warrantless arrest: (1) objections
to the use of the DNA evidence without explanation that an
unknown person's DNA was found on the victim; (2)
objections to the kidnapping jury instructions; (3) admission
of prejudicial testimony; and (4) failure to conduct a
hearing regarding the suggestiveness of a photo
identification process. Id. at pp. 6-11.
Petitioner had raised his illegal arrest claim in the
original petition, which he did not, it became irrelevant
once Petitioner elected to file an Amended Petition under
Mason.See W. Run Student Hous. Assocs., LLC
v. Huntington Nat. Bank, 712 F.3d 165, 171 (3d Cir.
2013) (“[T]he amended complaint supersedes the original
and renders it of no legal effect . . . .” (alteration
in original) (internal quotation marks omitted)). The Amended
Petition directed the Court to see Exhibit 2 for the list of
grounds Petitioner wished to raise in his habeas petition.
Those grounds were the ten grounds the Court instructed
Respondent to answer and did not include the validity of
Petitioner's oral statement or arrest under the Fourth
Amendment. The ten grounds raised were accurately stated in
this Court's Opinion of July 28, 2017 at pp. 10-11 and
analyzed at pp. 12-50 [Docket Item 18]. Petitioner raised
claims related to the failure to suppress his oral statements
in a police vehicle and at the station house only in the
context of trial counsel's alleged ineffective assistance
in preparing and arguing Petitioner's motion to suppress
(Ground VI), and trial counsel's alleged inadequate
representation at the Miranda hearing (Ground IX);
the Court thoroughly addressed and rejected these ineffective
assistance of counsel claims under the Sixth Amendment.
Id. at 32-40. Neither of the claims raised in this
Court directly challenged the validity of his arrest or his
immediate statements at time of arrest. Petitioner has
therefore forfeited that federal claim.
summary, the Court addressed all of the grounds that were
properly presented in Petitioner's Amended Petition. His
motion to ...